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Civil Revision No. 70 of 1977 decided on 11^th March 1981

Gifts----------Customs-----General Code of Tribal Customs though an authentic document nevertheless there being evidence to contrary on other side plaintiff bound to bring on record evidence to show custom in disputed area having not permitted making of gifts [Gift----------Custom]

__________S.27 [as repealed by N.W.F.P. Muslim Personal Law (Shariat Application Act (VI of 1935) S. 3 read with S.2]______Law with regard to succession etc. as laid down by Act VL of 1935_______Intended to be retrospective and such questions intended to be decided according to Muslim Personal Law in case or parties being Muslims_________[Interpretation of statutes]

Fazal Haq Dilzada V. Dawar Shah AIR 1940 Pesh 52 Zamo V. Habib Khan Qadir AIR 1941 Pesh 33 Mst. Malaka V, Mst Begum Jan AIR 1943 Pesh 5 Abdul Jabbar V.. Mst Nizam Nishan AIR 1946 pesh 3 and Mst. Sahib Jan V,. Wali Dad PLD 1961 Pesh 9 ref.

[As repealed by West Pakistan Muslim Personal Law Shariat Application Act (V of 1962) S 3 read with S.2] gift validity of Donor having acquired property under gift by inheritance under custom prior to passing of 1935 Act, subject to provisions of such Act when same passed, remaining so till passing of Act V of 1962, and matur ing his title to property by such time-Act V of 1962 not being. retros pective in effect in so far as S. 2 concerned does not give any fresh cause of action to any prospective heir of person from whom donor inherited-Donor by efflux of time having become full owner of property without any restriction (which custom might have imposed) and law of limitation being complete bar for claiming even Muslim law share by any one as heir of person from whom donor acquired property under custom,. such propositus of donor, held, became full owner of property and any Muslim law heir wishing to claim property could do so only within 12 years from date when donor entered into possession of property-Such course having not been adopted by Muslim law heirs, question relating to property of donor to be determined according to Muslim Personal Law notwithstanding passing of Act V of 1962.-[Gift].

Mst. Khatun v. Mall and others 1974 S C M R 341 ; General Code of Tribal Customs in Hazara District by H. D. Watson Fazal Haq Dilzada v. Dawar Shah A I R 1940 Pesh. 52 and Aslant v. Mst. Kainalzai P L D 1974 S C 207 ref.

Qazi Abdur Rashid for Petitioner.

H. Sardar Bahadur Khan for Respondents.,

Dates of hearing : 24th and 25th November, 1980.

The disputed property was in the ownership of Muhammad Aslam Khan son of Ahmad Khan. In respect of this property a deed, showing its transfer by the said Muhammad Aslam Khan by way of gift; in favour of his sisters Mst. Roshan Jan and Mst. Nabi Begum, defen dants Nos. 1 and 2 was executed on 12-8-1966. This deed, after the condo nation of delay, was subsequently got compulsorily registered on 2-8-1967 as Muhammad Aslam Khan had not appeared before the Sub-Registrar and the Registrar. On 15-4-1972 Muzaffar Khan brought the declaratory suit out of which the present petition arises. He imp1eaded his brother Attai as pro forma defendant No. 3 and claimed that the gift deed said to have been executed by Muhammad Aslam Khan in favour of defendants Nos. 1 and 2 is void, illegal and not binding on him and defendant No. 3 and that the legal rights of the presumptive heirs of Muhammad Aslam Khan including the plaintiff and defendant No. 3 were intact. An injunction was sought against defendants Nos. 1 and 2 from interfering with the disputed property on the basis of the aforesaid gift deed.

2. In substance the claim of the plaintiff was that Muhammad Aslam khan never executed the gift deed. That he was illiterate and insane and as such could not make the transfer of his property. That Muhammad Aslam Khan being under the influence of defendants Nos. 1 and 2 was not able to exercise his free will and, therefore, the gift deed was ineffective. That the gift deed was not presented within time prescribed for compulsory registration and that its registration was, therefore, illegal.

3. The plaintiff also claimed that Muhammad Aslam Khan under law and custom to which he was subject could not make a valid gift of his property because the property was ancestral qua him and he was unmarried and issueless. . .

4. The suit was contested by defendants Nos. 1 and 2 by filing a written statement which gave rise to fourteen issues. Out of these only five were discussed and decided by the learned trial Judge as the other had either not been pressed before him or were otherwise conceded, The issues which the learned Judge discussed are as follows

(1) Whether the plaintiff has got a cause of action

(4) Whether the suit is competent in its present form

(9) Whether Muhammad Aslam Khan is dead and plaintiff is entitled to his inheritance as an heir

(10) Whether registered gift deed dated 12-8-1966 is illegal and not bind ing on the plaintiff

(11) Whether plaintiff is entitled to the declaration and permanent injunc tion as prayed for

The learned trial Judge, by his judgment and decree dated 27-11-1975, decreed the suit of the plaintiff by granting him a declaration to the effect that the gift deed dated 12-8-1966 executed by Muhammad Aslam Khan in favour of the defendants Nos. 1 and 2 was illegal and as such void against the rights of the plaintiff and other presumptive heirs of said Muhammad Aslam Khan. While discussing Issue No. 1, the learned trial Judge found that the disputed property being ancestral, qua Muhammad Aslam Khan and the plaintiff being his reversioner had a cause of action to challenge the gift. Issue No. 4 was decided in favour of the plaintiff whereas under Issue No. 9 it was held that Muhammad Aslam Khan was alive and that the remaining part of the issue was redundant. While discussing issue No. 10, the learned trial Judge relying on the case of Mst. Khatun v. Mahla and others (1974SCMR341) held that Muhammad Aslam Khan having inherited the property under custom which restricted his power of alienation by way of gift, could not make the gift of the whole of his property despite the provisions Application Act (VI Frontier 1935) (hereinafter referred to as the 1935 Act) as replaced by the West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962). He also found that the gift deed was not proved to have been executed by Muhammad Aslam Khan and that even if he executed it the deed was ineffective being the result of undue influence exercised by defendant No. 1 over Muhammad Aslam Khan. Another reason for which the gift was held to be illegal was that the possession under the gift had not been transferred. As regards Issue No. 11 the decision of the learned trial. Judge was that the plaintiff was entitled to the grant of the declaration prayed for but he could not be granted permanent injunction against the defendants as be was not in possession-of the property.

5. When the matter came up in appeal before the learned District Judge he, by his judgment dated 23-2-1977 while accepting the appeal, reversed the judgment and decree of the learned trial Judge, and dismissed the suit of the plaintiff with costs throughout. While discussing together the issues in dispute he concluded that the plaintiff bad failed; to -prove that Muhammad Aslam Khan was governed by agricultural custom which restricts the rights of aliena tion of ancestral property byway, of gift. He also distinguished the provision of the 1935 Act from the Punjab Muslim Personal Law.(Shariat) Appli cation Act (IX of 1948) under which the Supreme Court had decided the case of Mst. Khatun v. Mahla and others referred to above and in substances, contrary to justice, equity or good conscience, and has not been by this or any other enactment altered or abolished, and has not been declared to be void by any competent authority ;

(b) the Mahomedan Law, in cases where the parties are Mohomedans and the Hindus Law .in cases where the .parties are Hindus, except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Regulation, or has been modified by any such custom as is above referred to."

Section 27 ibid was repealed by the 1935 Act by section 3 thereof in so far as it concerned the Muslims and section 2 of the said Act laid down the rules regarding succession etc. This reads as follows :-

"(2) Decision in certain cases to be according to Muslim Personal law.

In questions regarding succession, special property of females, betrothel, marriage, divorce, dower, guardianship, minority, bastardy, family relations, wills, legacies, gifts or any religious usage or institution including waqf (trust and trust property), the rule of decision shall be the Muslim Personal Law (Shariat), in cases, where the parties are Muslims.

Except in so far as such law has been altered or abolished by legislative enactments or is opposed to the provisions of the North-Went Frontier Province Law and Justice Regulation, 1901."'

The language of this section itself shows that the law with regard to succession etc. was intended to be retrospective in effect and the intention of the Legislature was that whenever a question of the nature mentioned in section 2 ibid arose it would have to be decided according to the Muslim Persona Law where the parties are Muslims The question had come up more than once before the Court of Judicial Commissioner of N: W. F. P: In the case of Fazal hlaq Dilzada v. Dawar Shah (A I R 1940 Pesh. 52) the last male owner made a will of his property in 1927 in favour of one of his two wives. When he died in 1929 his inheritance mutation was sanctioned in 1930 in the name of the said wife on the basis of a will made by the last male owner. She made a transfer of the property in 1932 in the names of her two sons from a former husband. This was challenged by the son of last male owner from the other wife. The Court held that the plaintiff could get his Muslim Law share amounting to 7/8 as the rule of succession was Muslim Law, section 27 of the Law and Justice Regulation having been repealed by the 1935 Act. It was also held that in the .1935 Act the Legislature did not intend to make a distinction between the cases in which an estate had opened before the enactment of the Act or after it. It was observed that the said Act, more or less lays down a rule of procedure and it becomes operative from the date on which that rule was ordered to come into force. Again it was observed that section 27 of the Law and Justice Regulation (VII of 1901) as substituted by the 1935 Act makes the Muslim Law the rule of decision for every question which arises before a Court after the Act came into force. Section 6 of the N: W. F. P. General Clauses Act was held to be inapplicable.

11. In the case of Mst. Zamo v. Habib Khan Qadir (A I R 1941 Pesh. 33) limited estate was held by the sister of the last full owner who died before the passing of the 1935 Act. On her death the collateral of the last full owner brought a title suit. Their claim was dismissed as they were not Muslim Law heirs of the last full owner. It was held that all questions of succession which come before the Court, after the 1935 Act came into force, must be decided according to the Muslim Law irrespective of the fact as to whether the person whose estate is in dispute had died before that Act came into force or after.

12. Again in the case of Mat. Malaka v. Mst. Begum Jan (A I R 1943 Pesh. 5) it was held that where a female enters into the possession of property as a limited owner and does not prescribe title by remaining in continuous possession for twelve years, the Muslim Law heirs of the last male owner could sue foe possession of their share.

13. In 1946, however, in the case of Abdul Jabbar v. Mst. Nizam Nishan (A I R 1946 Pesh. 3) a different view was taken. The last para of the judgment, which is relevant to the point at issue, may be reproduced as follows :-

"The main point in the appeal and the point on which we propose to dispose of it is that raised indirectly by Issue No. 3. We think that as the law was laid down in the Kehnian case the finding of the District Judge is correct and we do not think that the Daragri case conflicts with the Kehnian case in any way, for in the Daragri case it was specifically found by this Court that the widow had not been in possession as of right holding a life-estate but had been in possession in lieu of maintenance that is, with the permission of the reversioners. But on the arguments which have been addressed to us in this case we have come to the conclusion that the principles laid down in the Kehnain case must be modified and, in fact, they went beyond what was argued before the Bench at that time, for the argument was to the effect that estate have vested in the reversioners with the consent of all the parties concerned before the passing of the Shariat Act. The point of view which is now put before us is that the plaintiffs in this case never had a cause of action at all. The three possible causes of action would be the death of Fazal prior to 1904, the death of Mst. Dari in 1933, and the passing of the Shariat Act. It does not appear to us that either of the two former events gave to the plaintiffs a cause of action, for had they sued either in or after 1904 or immediately on the death of their mother in 1933, their suits would undoubtedly have been dismissed as they had no claim to the land at that time as custom was the rule which was enforced in the Courts. They could, therefore, not have a cause of action until the passing of the Shariat Act, and we do not think that the passing of the Act itself can give them any fresh cause of action, for the Act merely directs how cases are to be decided when they come before the Courts. For these reasons, we find that the decision of the trial Judge is correct and that .of the District Judge is incorrect. We accepted the appeal and setting aside the decree of the. District Judge restore that .of the Senior Sub Judge dismissing the: suit of the plaintiffs. The cross-objection are also dismissed. As, however, the plaintiffs obviously had a reasonable ground for bringing the suit in view of the decision in the Kehnian case we think it equitable that the parties should bear' their own costs in all Courts."

(2) Whenever a question relating to succession Upon the death of a Muslim arise in any Court the rule of decision shall be the Muslim Person Law Shariat as if that law had been applicable at the time of such death.

After the aforesaid amendments came up before the Peshawar Bench of the West Pakistan High Court in the case of Mst. Sahib Jan V. Wali Dad (P L D 1961 Pesh.9) In discussed at length and it was held that the 1935 Act was retrospective in effect and that whenever a dispute comes before a Court of law with respected to succession to the estate of a deceased Muslim the deceased shall be deemed to have did under the domain of Muslim Law if the death has taken place at any time passed It was further observed that the claim under the 1935 Act is like any other claim subject to the law of limitation and that if a claim to the we state of the deceased is preferred under the 1935 Act but the same is barred by the law of limitation the claim would not be entertain able in this case the customer law he its mentioned in possession and enjoyed the property of the deceased for over twelve year sand they were held to have matured their irrevocable title by prescription it was also observed that possession as owners of customary law heirs in their own right and not co heirs was to all intents and purposes hostile to female Muslim Law heirs it was further observed that their possession was not as co heirs of co owners but was an entry in their own right. According to the further observation make in the judgment there as an element of ouster with open and hostile possession and the character of possession could not be later by the change in law made by the 1935 Act. According to the judgment the claim which the Muslim Law heirs of the deceased person have to prefer after the endactment of the 1935 Act could be entertained only if the law for limitation was not an impediment and that if its is then the claim will be rejected if preferred after twelve years of the death of the deceased whose estate was sought to be inherited.

14. The view of the Peshawar Bench of the then West Pakistan High Court was affirmed by the Supreme Court itself in the case of Aslam v. Mst. Kamalzai ( P L D 1974 S C 207) The relevant portion of the judgment of the Supreme Court is as under:-

The question of limitation also has in our view to be answered in favour of the appellant. The estate that they took as customary heirs they took in their own right as absolute owners to the exclusion of all others. Mst. Kamalzai cannot say that she was unaware of this fact or that the possession of the appellant was in any way Possession as co-heirs. In the kind of possession that they took, the clement of ouster was also present, for, their possession was not only open but also hostile in their own right. as full owners. Mst. 'Kamalzai's suit, therefore, for a share in the estate that they had taken was clearly barred by limitation."

15. In view of the aforesaid decisions, if they stand unaltered by any subsequent decision of the Supreme Court the position in the present case would be that since the property belonged to AIi Mardan who died some where in 1923 a claim even though brought by Muslim Law heirs would not be within time as Muhammad Aslam Khan, after inheriting the property, had acquired full ownership with the exclusion of other Muslim Law heirs. But the status of the plaintiff does not stand any where. He is not a Muslim Law heir of Ali Mardan. Though Muhammad Aslam Khan was not the exclusive heir along with Muhammad Yaqoob Khan and his sisters were also entitled to inheritance under the Muslam Law nevertheless even if his sisters had brought the suit against him that would have been thrown out as being barred by time. in case the claim was after twelve years of the death of Ali Mardan : for in that case Muhammad Aslam Khan shall be deemed to have acquired full title by prescription, the sisters' position being co-sharers notionally notwithstanding, because there was a complete ouster. The gift if valid in favour of the sisters made by Muhammad Aslain Khan is in a was recognition of their right of inheritance. The plaintiff as such, under the law, as discussed above, has no cause of action to sue for the possession of the property or for declaration of his title because under Muslim Law a remote heir cannot claim title in anticipation of succession to the property as a Muslim Law heir.

16. The learned counsel for the petitioner has, however, argued that the law laid down in the case of Mst. Sahib Jan v. Wali Dad, referred to above, no longer holds the field as the Supreme Court in the case of Mst. Khatun v. Malla (1974 S C M R 341) has in fact overruled that decision. It must, however, be seen that the decision in the said case which followed some earlier decisions of the Punjab High Court and the Supreme Court related to the cases falling under the Punjab Personal Law (Shariat) Application Act (IX of 1948) as amended by the Punjab Act XI of 1951. That law in section 5 specifically provided that except in so far as provided in section 3 thereof the Act shall have no retrospective effect. This Act therefore applies only to those cases where the death of the last male owner took place after the passing of the 1948 Act and unlike the 1935 Act it did not extent to the cases where the death of the last full male owner had taken place prior to the passing of the said Act.

17. The learned counsel for the petitioner then contended that by enactment of the West Pakistan Muslim Law (Shariat) Application Act (V of 1962) the position had changed and that the language of section 2 thereof is the same as is of section 2 of the Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948) and that since the decision in the case of Mst. Khatun v. Malla, referred to above, was given after the passing of 1962 Act, that would hold the field and the interpretation of section 2 of the 1935 Act shall also have to be made in accordance with the law laid down in that case.

In this contention I see no force. No doubt the 1935 Act has been repealed by the West Pakistan Muslim Personal Law (Shatiat) Application Act (V of 1962), the rights which had accrued under the 1935 Act do not stand extinguished. It is pertinent to note that like the Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948), the West Pakistan Muslim Law (Shariat) Application Act (V of 1962) is also not retrospective in effect as far as section 2 of the said Act is concerned. Muhammad Aslam Khan having acquired the property by inheritance under custom prior to the passing of 1935 Act, was subject to the provisions of the 1935 Act when the same was passed. He remained so uptil the. passing of 'the West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962) and by that time he had matured full title to the disputed property. This Act not being retrospective in effect as far as section 2 is concerned, does not give any fresh cause of action to any prospective heir of the person from whom Muhammad Aslam Khan inherited the property. Muhammad Aslam Khan by the efflux of limitation became full owner of the ,property without any restriction which the custom might have imposed and the law of limitation is now complete bar for claiming even Muslim Law share by anyone as heir of Ali Mardan from, whom Muhammad Aslam Khan had acquired the property unde custom. It is thus clear that Muhammad Aslam Khan, though he inherited the property under custom, became full owner of the property and if any Muslim Law heir of Ali Mardan wanted to claim the property he could do so only within twelve years from the date when Muhammad Aslam Khan entered into possession of the property in view of the 1935 Act and the law of limitation. That having not been done by the Muslim law heir, the question relating to the property of Muhammad Aslam Khan, after the passing of the 1935 Act, in all respects, had to be determined according to the Muslim Personal Law notwithstanding the passing of the West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962). The plaintiff who is not a Muslim Law heir of Ali Mardan, has no 'cause of action to sue and even if he was an heir of Ali Mardan he could not do so as the claim was barred by time.

18. Nothwithstanding the fact that I have left certain questions for determination undecided the position that emerges is that the rule of succession in the present case is the Muslim Law and all questions are to be decided under that law. The plaintiff cannot seek a declaration to the effect that he has a chance of succession to the disputed property and that for that reason the gift made by Muhammad Aslam Khan should be held to be void as being against law irrespective of the passing of the different Shariat Laws enacted from time to time.

19. Since the plaintiff has no cause of action to sue for declaration, I agreeing with the learned District Judge, dismiss this petition but leave the parties to bear their own costs throughout in view of the legal questions involved.

S. A. H. Petition dismissed.

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